January 11, 2006

I talked about the Alito hearings on the "Midday" show on Minnesota Public Radio, which you can listen to here (scroll down to the 12:00 hour). The recording begins with some NPR coverage, with Nina Totenberg and others. My show starts at about 18 minutes.

She burst into tears when Lindsay Graham got out his violin and started apologizing that the poor judge had to answer questions about that sexist and racist organization that he "forgot" that he belonged to.

Sheck, hope no one dear to you is ever put through an unconscionably vile "hearing" like the Alito family. Kennedy who let a girl drown, accusing Alito of anything is atrocious. Hearings? BS Bloviation, I'd say.

She wasn't forced out by Leahy, Biden and the dem's jackboots, but she was forced to leave to preserve her dignity. I saw the tape! My heart goes out to the family. Regards.

Ann,I want to raise issues on two issues you discussed in that show: about settled law, and about the unitary executive.

The idea that Roe is "settled law," frankly, becomes absurd as soon as you try to define "settled."

Is Miranda v. Arizona "settled law"? I don't want to suggest that I've been seduced by the fallacious (but oft-repeated) idea that the Chief Justice thought so in Dickerson, but I do want to suggest that if we are to offer a model of settled law, Miranda might be it. As an original matter, I don't think it's entirely clear that the Constitution requires, or even supports, the result in Miranda. But the opinion was not entirely bizarre; the opinion makes a good case for itself; it is, in fact, a doctrinal ruling that attempts to give effect to an actual Constitutional right; and in terms of public acceptance, several decades later it is seriously challenged by virtually no one, and is certainly not generally controversial, either in the academy or the public at large. You can make a good case, on this basis, that Miranda is settled law, and thus, that Dickerson was correctly decided.

However, by contrast, using the same rubric to evaluate Roe, it is instantly preposterous to suggest it is "settled law." As an orignal matter, a blatantly wrongly-decided case (not least because the merits should never have been reached); the legal analysis in the opinion is, literally, non-existant, as everyone up to and including its author admit; it is premised upon a Constitutional right that flat-out doesn't exist; and in terms of public acceptance, it was controversial from the moment it was handed down, and far from being less controversial now, it has grown more poisonous and controversial with every passing year. On top of that, every single supreme court confirmation hearing, every Presidential election, every Senatorial election and two generations of political discourse have been corrupted and poisoned by an unconstitutional, pernicious, blatant and - even in the eyes of many pro-choice liberals - utterly unnecessary act of judicial usurpation. If if Roe is settled law, I'm a banana.

Regarding the unitary executive, I don't really think it's all that extreme or bizarre a theory, and I really don't think that the division in Morrison is a good metric for determining how popular the theory is (that is, that it's all that bizarre that Justice Scalia was the only person who voted for it in Morrison). Remember who was President at the time, so remember who the application of the unitary executive would favor in that case. I genuinely and honestly believe that, had that case come before the same court with a Democratic President - say, Clinton - Brennan, Marshall and Blackmun would have Joined Scalia's opinion without hesitation.

As I see it, the unitary executive theory embraces two aspects: procedural and substantive, that is, it talks about both how the business of the executive is conducted, and what actual limits are placed on the scope of the executive's actions within the law. It seems to me that watching the Alito hearings, no person who has asked a question about the unitary executive has any real understanding of what the theory entails: they simply assume that it is a codeword for a belief that we should give a latitudinarian interpretation to the powers of the President. But this belief is not only flatly contradicted by all the scholarship on the unitary executive that I've read, but it is also set in stark relief when one considers that Justice Scalia - the one and only Justice to endorse the unitary executive in Morrison - was also one of only two Justices in Hamdi v. Rumsfeld to argue for a narrower reading of Presidential power than the unitary executive. Similarly, I agree with the unitary executive theory, but my view on the independent power of the executive branch, under this President or any other, is probably more narrow than any Republican to whom you'll speak about the matter. Even among people who agree with the procedural aspect of the unitary executive theory - which is the hallmark, the defining feature or the theory - there is a very broad range of opinion about the substantive aspect, that is, the scope of action.

I do think, though, that your description of textualism vs. interpretivism as it relates to signing statements was very, very well put, in the sense that it was fair, accurate, and (I think, at least) would be easily-comprehensible to the lay person.